ISSUE 2:9, SEPTEMBER 2014 – RECENT DEVELOPMENTS

Medical Malpractice in Reproductive-Choice Procedures

Conner v. Hodges, — P.3d — (Idaho 2014)

Malpractice suits filed in connection with elective reproductive procedures often present unique problems. The suit filed by Jami Conner against her former gynecologist, Dr. Bryan Hodges, is a case in point. The plaintiff, a mother of two children, decided that she did not want to have more children. To avoid future pregnancy, she asked the defendant to perform bilateral ligation of her tubes and the defendant granted her wish. Two and a half years later, however, the plaintiff discovered that she was pregnant again. Her suit against the defendant promptly followed that discovery.

The defendant moved for the suit’s summary dismissal, claiming that it was time-barred. Under controlling state law, Idaho Code section 5–219(4), “[a]n action to recover damages for ‘professional malpractice’ must be commenced within two years after the cause of action has accrued.” The same statute also provides that the cause of action accrues “as of the time of the occurrence, act or omission complained of” and “shall not be extended by reason of any continuing consequences or damages resulting therefrom or any continuing professional or commercial relationship between the injured party and the alleged wrongdoer.”

Because suits for negligence require proof of actual damage, the Idaho Supreme Court held that the statute of limitations cannot begin to run until some damage has occurred as a result of the alleged malpractice, which can only happen when the “fact of injury becomes objectively ascertainable.” Davis v. Moran, 735 P.2d 1014, 1020 (Idaho 1987). This precedent doomed the action in Stuard v. Jorgenson, 249 P.3d 1156 (Idaho 2011)—a case in which an ill-performed spine surgery was readily and promptly discoverable through MRI. This benchmark parallels the more common “injury notice” benchmark for statutes of limitations: see, e.g., Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008).

In the case at bar, however, the “fact of injury” wasn’t present because the plaintiff suffered no injury. Her pregnancy, although unwanted, was healthy and hence did not fall into the “injury” category. The only “fact of injury” upon which the plaintiff could rely was her improperly ligated tubes. This injury, however, was more than two years old. Arguably, therefore, it was barred by the statute of limitation.

Luckily for the plaintiff, the Idaho Supreme Court decided that she was entitled to toll the statute of limitations under Davis. In making that decision, the Court distinguished the plaintiff’s situation from that of the plaintiff in Stuard v. Jorgenson. In Stuard, it explained, medical malpractice was easily ascertainable by MRI, whereas verification that a tubal ligation had been successfully performed involved a hysterosalpingogram or a laparoscopic chromotubation – procedures that are invasive, painful, risky, and expensive.

The Court thus effectively held that the limitations period starts running not from the “fact of injury” simpliciter, but instead from the fact of injury reasonably ascertainable by the patient.

The problem that arose in this case could easily be avoided if the plaintiff were allowed to sue the defendant for the breach of contract, as opposed to medical malpractice. Alas, she could not file such as a suit. As the Court explained, under Idaho Code § 6–1012, “damages due to injury …. on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto” are actionable only in torts as medical malpractice. Remarkably, not every state mandates such recharacterization of contract suits. Many states still allow patients to sue doctors for a breach of contract especially in connection with elective procedures: see, e.g., the classic case, Sullivan v. O’Connor, 296 N.E.2d 183 (Mass. 1973), which is still good law in Massachusetts.

Physicians’ Duty to Disclose Conflict of Interests

Shapira v. Christiana Care Health Services, Inc., — A.3d — (2014)

This case implicated a “On–Q procedure” that treats pain caused by rib fractures. The procedure involves the insertion of a special “On-Q” catheter that secures the infusion of liquid analgesic to soak the nerves around the fractured rib and thereby relieve the patient’s pain. The “On–Q” procedure has not been approved by the FDA and thus involved an “off-label” use of the “On–Q” catheter.

The physician in charge failed to inform the patient that he had an independent interest in the “On–Q” procedure. He had a contract with the On–Q’s manufacturer, I–Flow Corporation, that made him a paid member of the manufacturer’s speaker’s bureau. I–Flow paid the physician to give presentations to other doctors about the “On–Q” procedure and to create a patient database and promotional pamphlet.

Based on these facts, the Delaware Supreme Court held that the physician “had a strong incentive to play down the risks of the On–Q procedure and play up the problems with alternative treatments.” Whether the physician satisfied Delaware’s informed consent requirements thus turns into a jury question. Evidence showing the physician’s conflict of interests consequently becomes “relevant to the informed consent claim and admissible.”

Retroactivity and Repose

 Tenet Hospitals Ltd. v. Rivera, — S.W.3d — (Tex. 2014)

Texas’s repose provision for medical malpractice suits, enacted in 2003, mandates that “A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim.” To eliminate any doubt, the provision also clarifies that it is “intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.”

Texas’s 10-year window for filing suit is much wider than the repose periods in other states: see, e.g., 735 ILCS 5/13–212(a) (setting a typical 4-year repose period for medical malpractice suits in Illinois). This fact did not prevent the plaintiffs in Tenet Hospitals Ltd. v. Rivera, — S.W.3d —- (Tex. 2014), from arguing that Texas’ repose statute was unconstitutional. Specifically, the plaintiffs claimed that the statute unconstitutionally blocked their access to open courts and was also retroactive.

In considering those claims, the Texas Supreme Court observed that the plaintiffs were able to file their suit in 2004. At that point in time, the suit was not time barred: the repose statute allowed the plaintiffs to file it by 2006. For that reason, the plaintiffs failed the diligence test, which prevented them from raising the “open courts” challenge.

The plaintiffs’ complaint about retroactivity was far more promising: it alleged that the repose statute fails to accommodate pre-adulthood rights. Specifically, the plaintiffs argued that the alleged malpractice occurred during the victim’s birth in 1996 and prior to the statute’s enactment in 2003. The victim—who sustained permanent neurological disabilities as a result of the malpractice—was therefore entitled to file his suit upon becoming an adult in the age of 18 (2014). The repose statute of 2003 purported to extinguish this right. Hence, it is retroactive vis-à-vis the victim.

The Court agreed with the victim that the statute was retroactive as applied to him. Ultimately, however, it dismissed the victim’s “unconstitutional as applied” claim as well. The Court justified that dismissal by the presence of a compelling governmental interest in limiting physicians’ exposure to suits. More contestably, the Court decided that the retroactivity problem is adequately remedied by a 3-year grace period that the statute afforded to plaintiffs with whose rights it interfered.

Justice Lehrmann wrote a dissent that was particularly compelling on the retroactivity issue.

Lost Chances to Recover: An Elaboration

Rash v. Providence Health & Services, — P.3d — (Wash.App.Div.3 2014)

An 82-year old patient with a critical heart condition was hospitalized to undergo surgery. The patient’s heart condition made her death inevitable, but she managed to prolong her life with the help of medications. The hospital negligently failed to give the patient blood pressure medications. As a result, the patient suffered a series of strokes from which she died. The hospital’s negligence thus accelerated the patient’s demise.

The patient’s heirs sued the hospital for medical malpractice. The patient’s preexisting condition doomed the plaintiffs’ claim that the hospital’s negligence was the but-for cause of her death. The plaintiffs consequently demanded compensation for the lost chance of a better outcome, pursuant to Herskovits v. Grp. Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983); Mohr, 262 P.3d 490 (Wash. 2011). Their expert, however, could not estimate the lost chance, nor was he able to demonstrate that the neglected medications were more likely than not to prolong the patient’s life. All he was able to stand by was the estimation that the hospital’s failure to give the patient those medications was a “substantial factor” in accelerating her death.

Washington’s appellate court held that the plaintiffs’ suit was doomed to dismissal. The court justified that decision by the insufficiency of the plaintiffs’ “substantial factor” evidence and by the expert’s failure to quantify the lost chance.

The court’s first reason was absolutely correct. The “relaxed causation” doctrine that applies in Washington and many other states (see here at 1216-26) allows an aggrieved patient to establish causation by showing that her doctor’s malpractice was a “substantial factor” in the infliction of her injury. In the case at bar, the plaintiffs have failed to make this showing since the patient’s preexisting condition was the dominant cause of her death. An aggrieved patient becomes entitled to compensation also when he proves that the doctor’s malpractice had reduced her chance of recovery or better outcome. This cause of action, however, requires that the patient prove her lost chance by a preponderance of the evidence. The patient cannot combine the “substantial factor” rule with the lost chance doctrine to further reduce her burden of proof.

The court’s second reason, however, is not as convincing as the first. When a patient proves by a preponderance of the evidence that the doctor’s negligence had reduced her recovery or better-outcome prospect, absence of evidence quantifying the lost chance should not prevent the patient from recovering compensation. The patient’s evidential predicament would then be attributable to the doctor’s fault, which should make the patient entitled to every reasonable assumption in her favor in the court’s assessment of her lost chance. See here; and see more generally Ariel Porat & Alex Stein, Tort Liability Under Uncertainty (2001). Under the total absence of information, the patient’s lost chance would then be properly assessed at 50%.